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conspiracy between such officer and a subsequent assignee of the mortgage to cheat and defraud plaintiff of the property, were mere empty accusations, and, in the absence of allegation of any act of such officer on which to found such charges, were nugatory.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 12-282, 68; Dec. Dig. § 8.*] 3. SALES (8 474*)-CONDITIONAL SALE—IMPROPER FILING-RECEIVER'S SALE.

county. The public records might likewise | properly filed, fraudulently and pursuant to a show that the same individual owned 50 dwellings in a given county, but this would not require a statement of the particular dwelling burned or burglarized, so long as the one burned is described as within the county in which jurisdiction was sought. The case that comes nearest sustaining respondent's contention is State v. Muller, 141 Pac. 910, where it was held that, in charging the offense of bringing intoxicating liquor into a dry unit under the local option law, it is necessary to name the unit in which the offense was committed. This is so, because the several units of a county are municipal or political entities, and can only be known by their particular name, just as an individual is known by his particular name; and to refer to any one of the several units in a county as "a dry unit in

said county" is no more of a description than to refer to an individual, against whom a crime has been committed, in no other way than as "a person in said county." Besides, the particular statute under which the offense was laid in the Muller Case localizes the place as "in the unit where the violation is alleged to have occurred," thus making the particular unit, into which the liquor is brought, a material part of the offense. It was because of this definiteness of description that it was held it was necessary to designate the particular unit. Such reasoning, because of the absence of similar language in the two statutes, has no application here. We are therefore of the opinion that the information was sufficient and should have been sustained.

The judgment is reversed.

Where, after a corporation had executed a mortgage on its property, including that sold to it by a conditional sale contract improperly filed, the corporation became insolvent, and its assets passed into the hands of a receiver, and there were subsequent creditors in good faith, as to whom the conditional sale contract was invalid, as provided by Rem. & Bal. Code, 3670, a sale of the corporation's property, free and clear of liens of every kind, vested the purchaser with an absolute title, freed from every claim of the conditional seller.

Dig. §§ 1391-1402; Dec. Dig. § 474.*]
[Ed. Note. For other cases, see Sales, Cent.

4. ELECTION OF REMEDIES (§ 7*)—RECEIVER

SHIP PROCEEDINGS-VALIDITY OF LIEN-ES-
TOPPEL.

Where a conditional seller, whose contract had not been properly filed, so as to preserve his lien against subsequent purchasers, incumbrancers, and creditors in good faith, filed his claim with a receiver of the conditional buyer to have the same allowed as a preference or return the property, and, on its being denied, instituted a proceeding in the receivership action to reverse the receiver's ruling, and the judgment denying such relief was affirmed on appeal, the seller was estopped from thereafter asserting any claim against the property as against a purchaser thereof at the receiver's sale, notwithstanding all the issues raised in the prior trial were not there determined.

[Ed. Note.-For other cases, see Election of Remedies, Cent. Dig. § 12; Dec. Dig. § 7.*]

Department 2. Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by the North Coast Dry Kiln Com

CROW, C. J., and GOSE and PARKER, pany against the Montecoma Investment JJ., concur.

(82 Wash. 247)

NORTH COAST DRY KILN CO. v. MONTE-
COMA INV. CO. et al. (No. 11865.)

Company and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Paul B. Phillips, Milo A. Root, and W. G. McLaren, all of Seattle, for appellant. Hayden, Langhorne & Metzger and Sullivan &

(Supreme Court of Washington. Nov. 16, 1914.) Christian, all of Tacoma, for respondents. 1. CORPORATIONS (§ 306*) - OFFICERS VANCES MORTGAGES.

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Where an officer of a corporation had made large advances to it and had become its surety for large sums, he could properly take a mortgage on its property, including certain personalty sold to it under a conditional sale, which was invalid, as to subsequent purchasers and creditors in good faith, for want of proper filing, and was under no obligation to the conditional seller by reason of having subsequently assigned the mortgage to a corporation on consideration of its agreeing to release him from liability on the mortgagor's obligations to its stockholders, which he had indorsed, and a subsequent sale of

the property to the assignee of the mortgage by

a receiver.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1457, 1458; Dec. Dig. § 306.*] 2. PLEADING (§ 8*)-FRAUD.

An allegation that an officer of a debtor corporation took a mortgage on its property, including certain personalty sold to the corporation by plaintiff under a conditional sale contract not

FULLERTON, J. This is an appeal from a judgment rendered against the appellant after demurrers had been sustained to its complaint and after it had elected to stand thereon. The ultimate question presented by the appeal, therefore, is: Does the complaint state facts sufficient to constitute a cause of action?

The facts set forth in the complaint are in substance the following:

On December 5, 1910, the appellant sold to

the Syverson Lumber & Shingle Company, a

corporation, under a conditional sale contract, and delivered to it, as its shingle mill at Montesano, certain dry kiln fixtures and furnishings at the agreed price of $1,790, of which sum $442.22 was subsequently paid. The conditional sale contract was regular in

form, and provided that the title to the whole | ceiver refused to allow the claim as a preferof the property should remain in the appel-red claim or to return the fixtures, but allant vendor until the full purchase price was lowed the claim as a general creditor's paid. The shingle company was organized in claim, and so notified the appellant. The apPierce county, Wash., and its head office and pellant thereupon presented a petition to the legal residence was at Tacoma therein. The court, in which the receiver action was pendrespondent G. A. Onn was an officer of the ing, praying that the receiver be required to shingle company, and signed the conditional recognize and allow its claim as a preferred sale contract on behalf of the company, as claim, or return to it the property, as desuch officer. The appellant failed to file the manded in its claim presented to the receiver. conditional sale contract for record in the The receiver, answering the petition, obauditor's office of Pierce county, the legal jected to the relief demanded on the ground place of residence of the shingle company, that the conditional sale contract had not but did file it for record in the auditor's of- been recorded as required by statute, and the fice of Chehalis county. sale was, in virtue of the statute, absolute as to purchasers, and incumbrancers of the property, and subsequent creditors of the shingle company who had become such in good faith, and that there were such incumbrancers and creditors. The court entered upon a hearing of the issues raised by the petition and objections thereto, at which hearing (to quote from the appellant)—

it was agreed in open court that the only matter then to be determined was whether the conditional sale contract was so filed as to be notice to subsequent creditors, havand priority of this plaintiff, and it was further agreed that the determination as to which creditors, if any, subsequent to this plaintiff, became such with actual knowledge of the title of this plaintiff in said dry kiln equipment should be postponed till after the final adjudication of the rights of creditors having no notice of this plainthe 5th day of August, 1912, the prayer of said tiff's equity; and that thereafter, on, to wit, petition was denied by said court, and judgment was entered dismissing this plaintiff petition, from which judgment this plaintiff appealed to the Supreme Court of the state of Washington, and that, after due proceedings and hearings, the decision of said Supreme Court was rendered, and the judgment of the trial court affirmed on the 17th day of March, 1913; but that no proceedings were ever had to determine the priorities between this plaintiff and the defendants herein or those claimants, or their assigns, if any, who were charged with notice to this plaintiff's security and equity."

Prior to January 7, 1911, the respondent Onn had advanced for the use of the shingle company various sums of money, aggregating $21,000, and had become its surety for a loan made to it by the National Bank of Commerce of Tacoma in the sum of $13,500. On the day named he agreed to advance to the use of the shingle company such further sums as it might require up to the sum of $9,000. To secure this indebtedness and liability, the shingle company, on the same day, executed to him a mortgage on all of its prop-ing no actual knowledge or notice of the claim erty in Chehalis county, including the property described in the conditional contract of sale. Of the sums agreed to be advanced, Onn subsequently advanced $5,500, and later on paid the note due the National Bank of Commerce. The shingle company was then indebted, or subsequently became indebted, in large sums to general creditors, some of whose claims had been "underwritten or guaranteed" by the respondent Onn. On April 27, 1912, the shingle company was adjudged insolvent at the suit of an unsecured creditor, and a receiver was appointed, who immediately took possession of all its assets and property, and, as alleged in the complaint, now has possession of such property, “and has and does now manage and control said property and assets of said insolvent company." At or about the time of the commencement of the action in which the receiver was appointed, certain of the general creditors of the shingle company, whose claims had been guaranteed by Onn, organized and became stockholders in the respondent corporation, Montecoma Investment Company.

This company afterwards took an assignment from Onn of his interests in the mortgage executed to him by the shingle company, and, as a consideration for the assignment, agreed to and did assume the liability of Onn arising out of his guaranty of the claims of its stockholders.

On June 14, 1912, the appellant filed with the receiver its verified claim for the unpaid portion of the purchase price of the dry kiln fixtures and furnishings as a preferred or secured claim, asking, as an alternative, in case the claim should not be allowed as a preferred or secured claim, for the return to it of the fixtures and furnishings. The re

While these proceedings were pending, the Montecoma Investment Company presented its claim to the receiver for the amount of its assigned mortgage and accumulated interest, the whole amounting to upwards of $45,000, asking that it be allowed as a preferred claim against the shingle company and its general creditors to the extent of the property covered by its mortgage. The claim was so allowed by the receiver and by the court, and afterwards, on February 5, 1913, the receiver, under the direction of the court, offered the mortgaged property for sale, at which sale the Montecoma Investment Company bid therefor the full amount of its claim, and the same was sold to it on such bid. The sale was afterwards approved by the court, and suitable and proper conveyances were made to the investment company evidencing the sale. Subsequently the investment company sold and delivered a part of the property, which part included the dry

kiln fixtures, to the Hoquiam Sash & Door Company, for a valuable consideration.

It is then alleged that the Montecoma Investment Company has not satisfied the assigned mortgage of record, and still holds the same, and holds, of the property therein described, certain real property situated in Chehalis county, and further:

"That the claim of this plaintiff is and was superior to the claim of said G. A. Onn and said Montecoma Investment Company under said mortgage, and that said G. A. Onn and his assignee, the Montecoma Investment Company, and each of them, were and are trustees under said mortgage and under said conditional sale contract, for the benefit of this plaintiff, to the extent of the unpaid portion of the purchase price of said dry kiln apparatus, to wit, the sum of $1,354.78, with interest thereon at 8 per cent. per annum from the 12th day of January, 1911, and that they, and each of them, have fraudulently and unbeknown to this plaintiff conveyed said property, and that they, and each of them, have fraudulently and unbeknown to this plaintiff converted to their own use the funds and assets held by them in trust for this plaintiff, and have conveyed, and caused to be conveyed, to bona fide purchasers the property so held by them as security in trust for this plaintiff, to the damage of the plaintiff in the sum of $1,354.78, with interest thereon from January 12, 1911, at 8 per cent. per annum." In appropriate places in the complaint the acts of the respondents Onn and the Montecoma Investment Company are characterized as fraudulent, being the result of a conspiracy entered into for the purpose of cheating and defrauding the appellant and the general creditors of the shingle company. It is also alleged that the shingle company, at the time of the execution of the mortgage to Onn, was, and at all times since has been, insolvent, and has no property other than the mortgaged property, out of which the claims of the creditors can be satisfied. The prayer is in the alternative, first, for a judgment against the respondents for the unpaid portion of the appellant's claim, and, second, if the first relief demanded be denied, for a judgment subjecting the property still held by the respondent Montecoma Investment Company to the payment of its claim.

The respondents appeared separately in the court below and so appear in this court. Their demurrers were substantially similar, and were both special and general; it being alleged therein that there was another action pending for the same cause of action, that the cause of action set forth in the complaint had been adjudicated, and that the complaint did not state facts sufficient to constitute a cause of action. The judgment of the court is general, and does not specify on which of the grounds stated in the demurrers, whether one or more, it was thought the judgment could be rested.

[1] Noticing first the allegations of the complaint with respect to the respondent Onn, we are clear that no cause of action is stated against him. In so far as any actual participation on his part in the transaction

lant's cause of action is charged, his acts were simple and above board. He was an officer of the Syverson Lumber & Shingle Company. That company purchased certain fixtures from the appellant on a conditional sale contract, and Onn signed the contract on behalf of the company as such officer. He had made large advances to the shingle company, and had become its surety for large sums. vances, and, in consideration thereof, the He agreed to make further adcompany executed a mortgage to him on its property, including that held under the conditional sale contract, to secure the advances he had agreed to make and a part of the obligations of the company for which he stood as surety. Subsequently he made the advances agreed upon and paid the secured obligation on which he was bound as surety. Later on certain creditors of the shingle company, holding claims on which he was indorser, organized the respondent corporation, and this corporation took an assignment of the mortgage, and as a consideration therefor agreed to relieve him of the shingle company's obligations to its stockholders which he had indorsed. Here his connection with the transaction ended. In so far as the complaint shows, he had no part in the subse quent proceedings by which the title and possession of the property claimed by the appellant was transferred from the shingle company to the Hoquiam Sash & Door Company, nor is it alleged that he had any secret interest or profit in the transaction. On the contrary, the inference is, although it is not directly so alleged, that he sacrificed the very considerable advancements he had made on behalf of the shingle company in consideration that he be relieved from further obligation which he had guaranteed. In taking the mortgage, Onn violated no rule of law or morals, nor did he do so when he assigned it. These acts neither disturbed the possession of the property nor affected the appellant's right to enforce its contract. The appellant was in no way obligated by the mortgage, and could recover the property as well after it was given as it could before that time. We can therefore see no reason for the conclusion that the acceptance and subsequent transfer of the mortgage rendered the respondent liable to answer for the unpaid portion of the purchase price of the property.

[2] It is true the appellant alleges that the mortgage was taken fraudulently and in pursuance of a conspiracy entered into between the respondent and the assignees of the mortgage for the purpose of cheating and defrauding the appellant of the property, but no act of the respondent is pleaded on which the charges can justly be founded. festly they are but empty accusations of the appellant, the only use of which is to stigma. tize acts the appellant conceives are adverse

Mani

no grounds for an inquiry into transactions | to recognize the claim as a preferred claim which appear otherwise regular and legiti- or to return the property, but allowed the mate.

claim as a general creditor's claim. The appellant thereupon instituted a proceeding before the court, in which the receivership was pending, to reverse the action of the receiver. On a trial of the issue presented, the court adjudged that the appellant was not a preferred creditor, and was not entitled to a return of the specific property, which judgment this court afterwards affirmed. While it is true the appellant alleges in its present complaint that only a part of the issues were tried in that proceeding, that it was stipulated between itself and the re

[3] The question of the sufficiency of the complaint, as against the respondent Montecoma Investment Company, is of more difficulty, but we think the court rightly determined it also. The title acquired by the company to the property here in question is not deraigned through the mortgage of which it is assignee. There was no foreclosure of the mortgage or sale thereunder. Its title is deraigned through the insolvency or receivership proceedings, and it has such title as the receiver was competent to convey to it in virtue of those proceedings. That the pro-ceiver that they would first try out the quesceedings were regular is not questioned, nor is it questioned that the receiver purported to sell an absolute title to the property; that is to say, title free and clear of liens of every kind. If, therefore, the receiver had power to make such a sale, it follows as of course that the purchaser acquired an absolute title.

tion whether or not it had complied with the statutes in filing its conditional sale contract, and, if that question should be determined against it, the parties would then try out the question as to which creditors, if any, became such with actual knowledge or notice of the title of the appellant to the property, and that this latter question was not subsequently tried out, we think the fact does not permit it to pursue the property in the hands of a purchaser at the receiver's sale. As we have shown, the property was not sold subject to its claim, nor under any right derived through the mortgage to the respondent Onn, but was sold after an adjudication that the appellant had no preference claim' to the property. Since it selected the forum in which it would try the issue, and agreed upon the manner in which it would try it, it was obligated to pursue the remedy to the end. It cannot now be heard to say in another forum and in another cause of action, as against a purchaser at the receiver's sale, that all of the issues were not there determined.

It is contended, however, that the receiver took no better title to the property than his insolvent, the Syverson Lumber & Shingle Company, had therein, and that its title was not absolute, but conditional only, and hence the receiver could not by a sale pass any thing more than the conditional title, leaving the property subject to be pursued by the appellant in the hands of the purchaser, as freely as if the purchaser had taken the property from the insolvent directly. The rule of law here invoked is unquestionably sound as a legal proposition (see Sumner Iron Works v. Wolten, 61 Wash. 689, 112 Pac. 1109; McGill v. Brown, 72 Wash. 514, 130 Pac. 1142; and Davis v. Foster, 29 Wash. 364, 69 Pac. 1102), but we think the rule inapplicable to the appellant's situation. In the cases cited the court was speaking of absolute outstanding titles-titles so far perfected as to be unassailable by creditors of the insolvent. Here the appellant did not have such a title. It failed to file its conditional sale contract in the proper office, and, because of such failure, the sale was absolute as to purchasers, incumbrancers, and subsequent creditors in good faith. Rem. & Bal. Code, § 3670. Here there were such creditors, and they were entitled to have the property sold as the property of the insolyent. Since it was so sold at public sale by the receiver, the respondent took such title 1. thereto as the receiver was empowered to give, which we think was title absolute.

Our conclusion is that the judgment appealed from is without error and should be affirmed.

It is so ordered.

CROW, C. J., and MOUNT, PARKER, and MORRIS, JJ., concur.

(82 Wash. 325) RITTER v. CITY OF SEATTLE. (No. 12195.) (Supreme Court of Washington. Nov. 17, 1914.)

APPEAL AND ERROR (§ 979*)-NEW TRIAL (§ 76*)-DISCRETION OF COURT-REVIEW.

The granting of a new trial for excessive damages is within the discretion of the court, which will not be interfered with on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3871-3873, 3877; Dec. Dig. § 979 New Trial, Cent. Dig. §§ 153156; Dec. Dig. § 76.*]

[4] Moreover, we think the appellant is now estopped from asserting, as against a purchaser of the property at the receiver's sale, any claim against such property. The appellant presented its claim to the receiver as a pre-2. NEW TRIAL (§ 76*)-DISCRETION OF COURT ferred claim, asking in the alternative that, -EXCESSIVE DAMAGES. if its claim be not thus allowed, it have a re

Remarks by the court in refusing a new turn of the property. The receiver refused trial for excessive damages that he disagreed

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

with the jury as to the amount, but he thought he ought not to usurp their province by setting it aside, are insufficient to show an abuse of discretion.

[Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 153-156; Dec. Dig. § 76.*] 3. TRIAL (8 68*)-RECEPTION OF EVIDENCE REOPENING CASE.

An offer of evidence after both parties had rested, and after an adjournment, which did not show that the offered evidence was newly discovered or its introduction inadvertently overlooked, is properly refused.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 158-163; Dec. Dig. § 68.*] 4. APPEAL AND ERROR (8 548*)-RECORDMOTION FOR NEW TRIAL-AFFIDAVIT.

Where no affidavit or evidence of any nature is brought to the appellate court, the ruling on a motion for new trial for newly discovered evidence, is not reviewable.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. 548.*1

Department 1. Appeal from Superior Court, King County; Everett Smith, Judge. Action by Lina Ritter against the City of Seattle. From a judgment for plaintiff, defendant appeals. Affirmed.

Jas. E. Bradford and Melvin S. Good, both of Seattle, for appellant. Blair & Blinn, for respondent.

PARKER, J. This is an action to recover damages for personal injuries which the plaintiff claims resulted to her from the negligence of the city of Seattle. Verdict and judgment were rendered against the city, awarding the plaintiff $1,750 damages, from which the city has appealed.

asked for more than she got, and the jury were careful in their deliberation before they rendered their verdict."

That the granting or refusing of a new trial upon the ground here urged is a matter within the discretion of the trial court, with which discretion this court will not interfere except in cases of plain abuse thereof, is too well settled to require discussion at this time. Kohler v. Fairhaven, etc., Co., 8 Wash. 452, 36 Pac. 253, 681; Winningham V. Philbrick, 56 Wash. 38, 105 Pac. 144; Sylvester v. Olson, 63 Wash. 285, 115 Pac. 175; Brown v. Walla Walla, 76 Wash. 670, 675, 136 Pac. 1166; Bernard v. Yakima, 141 Pac. 1034. Counsel for the city concede this to be the law, but insist that the remarks of the trial judge above quoted show an abuse of discretion on his part, in that he refused to set aside the verdict and grant a new trial notwithstanding his expressed opinion that the verdict was excessive. This court has consistently adhered to the doctrine that a trial judge is not required to grant a new trial merely because he entertains a view differing from that of the jury as to what the verdict should be. Tacoma v. Tacoma Light & Water Co., 17 Wash. 458, 50 Pac. 55; Suell v. Jones, 49 Wash. 582, 96 Pac. 4; Kincaid v. Walla Walla Valley Traction Co., 57 Wash. 334, 106 Pac. 918, 135 Am. St. Rep. 982; In re Renton, 61 Wash. 330, 112 Pac. 348; Franey v. Seattle Taxicab Co., 141 Pac. 890.

Counsel for the city insist that these remarks of the trial judge bring this case within the rule of the decisions of this court in Tacoma v. Tacoma Light & Water Co., 16 Wash. 288, 47 Pac. 738, Clark v. Great Northern Ry. Co., 37 Wash. 537, 79 Pac. 1108, 2 Ann. Cas. 760, Cranford v. O'Shea, 75 Wash. 33, 134 Pac. 486, and Brown v. Walla Walla, 76 Wash. 670, 136 Pac. 1166. The Tacoma Case was overruled upon rehearing (17 Wash. 458, 50 Pac. 55). The Clark Case does seem to contain observations of the court lending some support to the contentions of counsel for the city here made, but that case, as noticed in Re Renton, supra, dealt with remarks of the

[1, 2] One of the grounds upon which counsel for the city rested their motion for new trial was "excessive damages appearing to have been given under the influence of passion and prejudice." The refusal of the trial court to grant a new trial upon this ground is the principal claim of error here relied upon by counsel for the city. Their argument in this behalf is rested entirely upon remarks of the trial judge made in disposing of the motion for new trial, expressing his opinion somewhat at variance, with the conclusion of the jury as to the amount of damages respondent should be awarded. The re-trial judge which indicated that he made his marks of the trial judge, which we regard as most favorable to the theory of counsel's contentions, were as follows:

"The court thinks the amount awarded by the jury was excessive, but that was for the jury to determine. It was in this case a question purely for the jury to determine how much they should award the plaintiff for her injuries, and they decided her injuries were worth $1,750. If it had been tried by the court the court would not have given any such verdict as that, although the court would have been obliged to give the woman a verdict. And while in the main the court thinks the amount of the verdict is excessive-it is more than it should have been--the court thinks that under the ruling of the Supreme Court a matter like that is exclusively a matter for the jury; that the court would not interfere with it. 1

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ruling because of his belief that he lacked power to grant a new trial where the verdict was contrary to the weight of the evidence. Referring to the Clark Case and also to the Cranford and Brown Cases in Franey v. Seattle Taxicab Co., supra, we said:

"Those were cases where the trial court thought a new trial should be granted, but that it had no power to grant a new trial. But we held otherwise, and said that the court should have exercised its judgment and granted a new trial; that it had authority so to do. The granting or refusing of a new trial, where there is conflicting evidence, is discretionary with the trial court. The mere fact that the judge's opinion differs. from the opinion of the jury as expressed by the verdict does not necessarily require him to grant a new trial."

do not think it is for the court to take the place of the jury in determining the amount of the Now, looking to the whole of the learned award that should be awarded to her. She trial judge's remarks in this case, we do not

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